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The start of the appeal procedure: CMRHs and PHRs

Chapter number:
6
Section:
Procedure
Last updated:
15 January 2021
Chapter contents
CMRHs
Paper PHRs

6.1 Once the appeal has been lodged and a certificate of fee satisfaction issued by the Lord Chancellor (see 4.4A-4.4G), the appeal will begin to be case managed by the Tribunal.

6.1A Under the online reform procedure, used for appeals lodged after 22 June 2020 where the appellant is represented, material is submitted to the Tribunal by uploading it onto the online MyHMCTS system. After the notice of appeal has been uploaded, the standard directions provide for the following steps:

• not later than 14 days after the notice of appeal has been uploaded, the Home Office must upload its bundle, which must contain the refusal decision and any material submitted in support of the application;

• not later than 28 days after the Home Office bundle is uploaded, or 42 days after the notice of appeal, whichever is later, the appellant is required to upload an appeal skeleton argument ('ASA') and a bundle of any material relied upon in the ASA which is not included in the Home Office bundle.

• Within 14 days of the ASA, the standard directions provide for a 'meaningful review' by the Home Office of the case, and provide the result of that review and 'particularis[e] the grounds of refusal relied upon'.

Following the Home Office review the case – if ready to be listed – will be set down for a substantive hearing.

6.1B In cases started before 22 June 2020 (so called 'legacy' cases), after the appeal was lodged the Tribunal would send a copy of the notice of appeal and any accompanying documents to the Home Office and issue a notice of hearing and directions. Rule 24(3) required that the Respondent's bundle and any statement as to any change in or addition to the Respondent's reasons for opposing the appeal under rule 24(2) (see chapter 10) must (if no specific directions are given) be provided within 28 days of the date on which the Tribunal sent the Respondent a copy of the notice of appeal and any accompanying documents. The Senior President's Practice Directions set out the standard directions for legacy cases. These typically required the service of bundles and skeleton arguments 'not later than 5 working days before the full hearing (or 10 days in the case of an out-of-country appeal)' (para 7.5).

6.2 The 2014 Rules do not lay down time limits for the listing of the hearing. However, under the reform online procedure (and for all cases started on or after 22 June 2020), a hearing will not be listed before the stages envisaged in the standard directions are completed. In practice, this will be at least 56 days after the appeal is lodged with the Tribunal. This process turns on its head the procedure previously adopted by the Tribunal to issue a notice of hearing as an initial step after the notice of appeal is received. Given that under the reform procedure, it is not anticipated that an appeal will be listed for a substantive hearing until the prior steps set out in the standard directions are completed, in some cases the time between lodging the appeal and listing of the final hearing will be considerably longer than 56 days. One of the aims of the reform, however, is to prevent adjournments by ensuring that final hearings are listed only for cases that are evidentially ready to be listed.

6.3-6.4 […]

6.5 When the Case Management Review Hearing ('CMRH') was introduced in 2005, one was held in every asylum appeal; the practice directions stated that one would be held unless the Tribunal otherwise directed. However, the failure of the Home Office to engage fully in the CMRH process, for example, by refusing to narrow issues and by failing to serve its bundle in advance of the hearing, gradually led to decisions by regional centres to abandon this practice. In January 2009, the Tribunal announced its intention to extend a pilot of telephone CMRHs and at some hearing centres, these became the norm. The current Practice Directions no longer apply any presumption in favour of holding a CMRH in asylum appeals, instead allowing for one to take place if the Tribunal so directs. The practice of ordering a CMRH only where directed by the Tribunal is maintained in the standard directions for the reform procedure. As for cases lodged before 22 June 2020, the Tribunal's User Guide says that the decision whether to list a CMRH will be made on a case by case basis, having regard to the overriding objective. Oddly, however, the standard directions for cases started using MyHMCTS (contained in Annex 1 to Presidential Practice Statement No 2 of 2020) do not refer to case management hearings, although in practice the Tribunal still decides on a case by case basis whether one is needed. But the standard directions in Annex 2, which Presidential Practice Statement No 2 of 2020 indicates are intended for cases brought or case managed online not using MyHMCTS, state that:

At each stage the appeal shall be considered by a Tribunal Caseworker or Judge who will decide on a case by case basis …whether the appeal would benefit from a Case Management Appointment.

6.5A There are three broad alternatives: a CMRH conducted at a face-to-face hearing at which both parties are present; a CMRH conducted by telephone or video conferencing; and, most commonly, a paper Pre-Hearing Review ('PHR'). Previously, concerns were raised about a practice whereby the Tribunal would invite HOPOs to appear personally and appellants only by phone. The then President of the First-tier Tribunal IAC told the Presidents' Stakeholder Forum on 21st April 2010 that she had reminded judges that it was unacceptable to invite the Home Office to appear personally and appellants only by phone, and that judges had been reminded not to discuss a case with the HOPO until the appellant's representative was online. During the Covid-19 pandemic, most CMRHs have taken place by telephone or via CVP. In the unlikely event that you have been invited to attend a CMRH remotely but the Home Office and judge are present in the court room, you should query the reason for this and, in certain circumstances, it may be appropriate to object and request that the hearing be adjourned to a date when both parties can attend in person.

6.5B It is sensible to request an oral CMRH if the issues in your case are particularly complicated, including where you are seeking to rely on 'new matters' (see chapter 5), you are seeking unusual directions about which the judge may have questions and oral argument is likely to be more persuasive, or your client is a child or particularly vulnerable.

6.5C In such circumstances, if your appeal is listed at a hearing centre that you know is not routinely conducting CMRHs or if you receive a paper PHR form, you will have to write asking for a CMRH and justifying your request by reference to the complexity of the issues, the directions which you require, or the need to make arrangements to deal with a vulnerable adult. You should draw attention to the Guidance Note on Child, Vulnerable Adult and Sensitive Witnesses if appropriate (see para 6.23 below). The need for a CMRH in order to consider bespoke directions in such cases was emphasised by the Senior President in AM (Afghanistan) [2017] EWCA Civ 1123 (para 28). If the date for the final hearing has been listed and you need more time, you can request that that hearing date is instead converted into a CMRH. Your request will be stronger if accompanied by a draft of any directions you are seeking; of course if the Tribunal is content to simply make those directions you may not need to insist on an oral hearing. Be aware, however, that in practice requesting a CMRH may lead to a delay of several months in listing the final hearing.

CMRHs

6.6 The Practice Directions warn against non-attendance at a CMRH:

7.2 It is important that the parties and their representatives understand that a CMR hearing is a hearing in the appeal and that the appeal may be determined by the Tribunal under the relevant Procedure Rules if a party does not appear and is not represented at that hearing.

6.7 The relevant rules in the First-tier Tribunal for non-attendance are rule 25(2), which allows the Tribunal to determine the appeal without a hearing, and rule 28 (hearing an appeal in the absence of a party). If due to unforeseen circumstances, you cannot attend the CMRH (whether it is by telephone or in person) it is vital that you provide a prompt explanation to the Tribunal to avoid either of these courses. Neither course can be taken if your client attends although this should not of course be used as a basis to avoid the attendance of the representative.

6.8 The AIT Guidance Note on CMRHs (which is published on the Tribunal's website as one of the "Guidance Notes for the former AIT that are now relevant to FTTIAC") states that

It is highly desirable that the representative for the appellant who attends the CMR hearing should be the same individual who will appear at the substantive hearing. If this is not the case, then an explanation should be sought and the expectation that the same individual will attend both hearings should be made clear.

6.9 While there are obvious benefits in the advocate who will conduct the full hearing also conducting the CMRH, it is not always practical, particularly given that the Tribunal does not invariably list appeals taking account of representatives' dates to avoid, and is less important in straightforward cases. However, it is vital that if a different advocate is briefed for the CMRH, that person is properly briefed to deal with the issues that will arise.

6.10 Some of these issues are set out in the Practice Directions:

"7.3 In addition to any information required by First-tier rule 19 (form and contents of notice of appeal), the appellant before the First-tier Tribunal must provide that Tribunal and the respondent at the CMR hearing with:

(a) particulars of any application for permission to vary the grounds of appeal;

(b) particulars of any amendments to the reasons in support of the grounds of appeal;

(c) particulars of any witnesses to be called or whose written statement or report is proposed to be relied upon at the full hearing; and

(d) a draft of any directions that the appellant is requesting the Tribunal to make at the CMR hearing.

7.4 In addition to any documents required by relevant Procedure Rules,, the ... respondent ... must provide the Tribunal and the appellant at the CMR hearing with:

(a) any amendment that has been made or that is proposed to be made to the notice of decision to which the appeal relates or to any other document served on the person concerned giving reasons for that decision; and

(b) a draft of any directions that the respondent is requesting the Tribunal to make at the CMR hearing."

6.10A Appendix 1 to the Tribunal's User Guide states the following on preparation for a CMRH, in the particular context of the Covid-19 pandemic. Importantly, this includes consideration of your appeal's suitability for remote hearing (see chapter 7):

Each case will be discussed on its own facts and circumstances. The discussion with the judge is likely to cover the following points:-

1. Is your appeal ready for a final hearing, if not what needs to be done to get your appeal ready for a final hearing?

2. Whether your appeal hearing is suitable for a remote hearing, a face to face hearing or a paper hearing,

3. If your hearing is suitable for a remote hearing, whether this will be by video or telephone, taking into account your wishes and your access to the equipment needed to take part in a remote hearing (such as a laptop, personal computer, smart phone or tablet with an integrated camera or webcam and a reliable internet connection),

4. What are the issues to be decided by the judge at the final hearing?

5. Are there any concessions or agreements between the parties as to the issues?

6. How many witnesses need to give oral evidence?

7. Does the appellant/witness require an interpreter, if so in what language and dialect?

8. Does the appellant/witness require any special adjustments to take part in the hearing, if so what adjustments are required and why?

9. How much time will be required for the final, hearing?

10. Arrangements for the final hearing.

6.11 It is not necessary to provide witness statements at the CMRH. However, you are expected to be able to give a list of witnesses so far as possible. This is obviously relevant to the time estimate. If the witness has sought asylum at any stage, it may be useful to be able to point out at the full hearing that the Home Office was notified of the witness at the CMRH and had the opportunity to review the file if it wished.

6.12 The Tribunal may want to know whether it is intended to rely on any expert evidence. If you are unclear as to the utility to your client's case of any expert evidence at the CMRH, it may not be appropriate to provide detail which may be speculative to the Tribunal at this early stage. Whilst you may not knowingly mislead the Tribunal, there is no duty of candour in statutory immigration and asylum appeal proceedings: see Nimo (appeals: duty of disclosure) [2020] UKUT 00088 (IAC) at [23] and see further chapter 9.

6.13 If there is doubt about whether the expert evidence will be available in time to comply with the standard directions (or even before the full hearing), it is advisable to ask the judge to note this on the record of proceedings or on the directions sheet. If it is subsequently necessary to request an adjournment of the full hearing because the expert or medical evidence is not ready, you will be able to demonstrate that you raised the issue in good time.

6.14 Where you seek to raise a 'new matter' (see chapter 5), it will be particularly important to raise this at the CMRH stage, so as to give the Home Office the opportunity to consider the ground before the substantive hearing, and reduce the likelihood of it withholding consent to the Tribunal considering it. Whilst Home Office policy is to consent to new matters to allow all relevant matters to be considered in one appeal, in practice the Home Office frequently withholds consent. There is little the Tribunal can do about this, although you may want to ask the judge to direct that the Home Office apply its policy in respect of the new matter raised in your case, but ultimately your remedy for the withholding of consent will be judicial review (see 5.6A-D).

6.15-6.16 […]

6.17 If the Tribunal presses for more particulars of your case than you are able to provide at the CMRH (if the CMRH is held at a point before which the evidence in your client's case is complete), it can be referred to the AIT Guidance Note. This sounds the following note of caution against unrealistic requests to the appellant to concede or abandon points when the preparation of her case is not complete:

18. One of the perceived advantages of the introduction of CMR hearings was to allow the Tribunal to identify the issues in the appeal and focus the parties on those issues. This requires thorough preparation by the immigration judge prior to the hearing.

19. There are constraints, however, on how far the issues can be narrowed and defined. The Appellant's representative will probably still be in the process of assisting the appellant in preparing the case. Until the appellant's witness statement is finalised, it may be difficult for aspects of the appellant's case to be conceded or reduced in significance.

6.18 The CMRH ought to provide an excellent opportunity to clarify the Home Office's case (see chapter 9) and the Tribunal should encourage this, given that its case will ordinarily be complete by this stage. However, as noted above, historically, one of the reasons for the Tribunal moving away from automatic CMRHs in asylum cases was its frustration at the failure of the Home Office to engage properly in the process.

6.18A Under the reform procedure, the Home Office is required to meaningfully review your client's appeal which requires active engagement with the issues. If the CMRH is listed after the Home Office review stage, therefore, the HOPO should have instructions on the issues and whether anything can be narrowed. If an agreement is reached which narrows the issues, particularly if it does not reflect what is in the refusal letter and is not contained in any Home Office review document, it is important to ensure that an agreed note of the issues is prepared at that stage. In Kalidas (agreed facts – best practice) [2012] UKUT 00327 (IAC), the Tribunal emphasised the importance of ensuring that where a concession has been made it is reduced to writing so as to avoid any misunderstanding between the parties and the Tribunal as to the nature of the issues in the case. It gave guidance encouraging the narrowing of issues at CMRHs and how appeals should then proceed where the issue could be narrowed:

29. Parties should consider at as early a stage as possible, and preferably in advance of any CMR, what agreement can be reached on the scope of the issues and what concessions can be made. They should bear in mind the purposes of CMRs, set out in the Senior President's Practice Directions, paragraph 7. They should assist the First-tier Tribunal to produce in terms of PD 7.8:

… written confirmation of:-

(a) any issues that have been agreed at the CMR hearing as being relevant to the determination of the appeal; and

(b) any concessions made at the CMR hearing by a party.

30. If credibility is not in issue, it will often be unnecessary to submit a further statement from an appellant, or to call her to give evidence. If this approach is taken, the hearing judge should be told why this approach is taken.

31. Any further statement should not be a rehash of what has already been said. It should be directed to the remaining live issues.

32. If an appellant produces a skeleton argument or other written submission (which is often desirable) it should not contain just expressions of general law which might apply to any case. It should deal with the live issues in the actual case.

33. A judge who accepts and records concession or agreement on the facts should consider whether to treat the case as part-heard, and reserve to herself for further hearing. She is best placed to understand the exact scope of the agreement. There may be future difficulty for another judge who is faced with partial agreement on evidence, if the challenge to the rest raises questions about the whole.

34. Representatives have a joint responsibility to draw the attention of the judge at the outset of the substantive hearing to the extent of agreement reached, and the nature of the decision still required.

35. Judges, unless in exceptional circumstances, do not look behind factual concessions. Such exceptional circumstances may arise where the concession is partial or unclear, and evidence develops in such a way that a judge considers that the extent and correctness of the concession must be revisited. If so, she must draw that immediately to attention of representatives so that they have an opportunity to ask such further questions, lead such further evidence and make such further submissions as required. An adjournment may become necessary.

6.19 The AIT Guidance Note also warns against the Tribunal determining any substantive disputed issues at the CMRH:

20. It should also be borne in mind that unless the same immigration judge conducts the substantive hearing as conducts the CMR hearing, the earlier immigration judge has no power in law to exclude from consideration any issues which the immigration judge at the substantive hearing may consider relevant. Under no circumstances should the Tribunal at the CMR hearing purport to determine any substantive issues in dispute, such as the appellant's nationality, where the appeal is proceeding to a full hearing, unless the issue in question has been expressly agreed between the parties.

6.20 The Guidance Note further states that:

25. It is always worth ascertaining whether the appellant has any family members in the UK, and, if so, whether they are dependants or have claimed asylum themselves. It is desirable to hear appeals by members of the same family together, in terms of rule 20, but not if this will lead to a lengthy or indefinite delay in hearing one of the appeals.

26. Where a family member has already had an appeal, details of this should be made available, along with any determination, unless the determination has been over-turned. The findings made in the earlier determination, so far as relevant and still valid, will have to be taken into account in the later appeal. (See TK (Consideration of Prior Determination - Directions) Georgia [2004] UKIAT 00149.)

6.21 See chapter 15 as to combined or linked hearings and calling evidence from a family member. TK (Consideration of Prior Determination - Directions) Georgia [2004] UKIAT 00149 would not appear to be authority for the proposition that the determination of family members who are not being called as witnesses must be taken into account in the way envisaged in the Guidance Note.

6.22 No definition of 'family member' is given. It seems unlikely (and unreasonable) that representatives should be intended to find and produce determinations in cases of relatives which do not involve the same facts. Note that there is no requirement for permission to adduce the determinations of family members (para 15.7).

6.23 The Guidance Note on Anonymity Directions indicates that the need for anonymity should be reviewed at the CMRH and you should raise this, assuming your client wants anonymity (see chapter 32). You should also consider in advance of the CMRH whether your client is vulnerable or whether there are any concerns about her capacity to give you instructions or give evidence (para 11.22-11.32). If so, the CMRH is the appropriate time to raise these concerns with the Tribunal and seek directions. Joint Presidential Guidance Note No. 2 of 2010 on Child, Vulnerable Adult and Sensitive Appellants recommends that "potential issues and solutions should be identified at a CMRH or pre hearing review and the case papers noted so that the substantive hearing can proceed with minimal exposure to trauma or further trauma of vulnerable witnesses or appellants." It sets out a list of matters to be considered at the CMRH or at the start of the substantive hearing if there was no CMRH. This Guidance Note was explicitly endorsed by the Court of Appeal in AM (Afghanistan) [2017] EWCA Civ 1123. One of the key features of the Guidance emphasised by the Court of Appeal in AM (Afghanistan) was the importance of early identification of vulnerability. The Senior President noted that (para 32):

… the primary responsibility for identifying vulnerabilities must rest with the appellant's representatives who are better placed than the Secretary of State's representatives to have access to private medical and personal information. Appellant's representatives should draw the tribunal's attention to the PD and Guidance and should make submissions about the appropriate directions and measures to be considered e.g. whether an appellant should give oral evidence or the special measures that are required to protect his welfare or make effective his access to justice.

6.23A The Joint Presidential Guidance Note advises the Tribunal on particular steps to be taken to ensure that "the substantive hearing can proceed with minimal exposure to trauma or further trauma of vulnerable witnesses and appellants" (para 4). It recommends a number of steps, including "rearrangement of furniture to enable a child friendly or less formal structure eg all on the same level" and ensuring that "the time estimate provided allows for special arrangements eg frequent breaks to ensure adequate concentration levels...". The Senior President's Practice Direction on Child, Vulnerable Adult and Sensitive Witnesses advises Tribunals to consider allowing evidence to be given by video link or other means, or to appoint a person "who has the appropriate skills or experience in facilitating the giving of evidence" by such a witness. The IAA Gender Guidelines suggested rearranging the hearing room to make it less formal, giving evidence via video link, provision of a female interpreter, or an all-female court. The latter involves not only a female judge but the Home Office being directed to provide a female HOPO. The Joint Presidential Guidance Note now indicates that any request for a single gender Tribunal should be considered but advises judges to "bear in mind that sensitive issues may not be the subject of questions or core to the evidence". In SB (vulnerable adult: credibility) Ghana [2019] UKUT 00398 (IAC) the Tribunal described the two aims underlying application of the Joint Presidential Guidance Note No 2 of 2010:

61…First, the judicial fact-finder will ensure the best practicable conditions for the person concerned to give their evidence. Secondly, the vulnerability will also be taken into account when assessing the credibility of that evidence.

62. So far as the second aim is concerned, the Guidance makes it plain that it is for the judicial fact-finder to determine the relationship between the vulnerability and the evidence that is adduced:

"3. The consequences of such vulnerability differ according to the degree to which an individual is affected. It is a matter for you to determine the extent of an identified vulnerability, the effect on the quality of the evidence and the weight to be placed on such vulnerability in assessing the evidence before you, taking into account the evidence as a whole."

6.24 The Practice Directions provide for a written record to be provided to the parties at the end of the CMRH as follows:

7.8 In addition to the [standard] directions ... , at the end of the CMR hearing the Tribunal shall also give to the parties written confirmation of:

(a) any issues that have been agreed at the CMR hearing as being relevant to the determination of the appeal; and

(b) any concessions made at the CMR hearing by a party.

In practice, in the absence of the Tribunal sending out directions, a written statement of any agreed issues or concessions is not always provided to the parties following a CMRH. If you do not receive anything from the Tribunal, you should follow up requesting this. A written record of points agreed between the parties at the CMRH will avoid potential problems at a future hearing, whether it be a substantive hearing or a further CMRH, where the HOPO and judge are likely to be different.

6.24A The Presidential Guidance Note No 3 of 2018 provides for Tribunal caseworkers to hold case management meetings (which the parties, and/or their representatives, are required to attend) for the purposes of managing, and/or giving directions in, any appeal. These are said to be called 'Case Management Appointments' and are undertaken pursuant to the Senior President of Tribunals' Practice Statement of 28th September 2018 (and updated on 11 November 2019) authorising Tribunal Caseworkers to carry out functions of a judicial nature.

Paper PHRs

6.25 Where the Tribunal dispenses with a CMRH and holds a paper PHR it will send the appellant a "Reply Notice", which the appellant is directed to complete and return by a specified date in advance of the PHR. The notice warns that a failure to complete the reply notice in time constitutes a breach of directions which could result in the appeal being decided without a hearing under rule 25(1)(e) (see the discussion at 7.6-7.13 as to the limited circumstances in which this power should be used). The Home Office is directed to comply with para 7.4 of the Practice Directions (see para 6.10 above) by the date of the PHR.

6.26 The Reply Notice asks the Appellant to confirm whether she still wants an oral hearing, whether she intends to give oral evidence and/or to call witnesses (and if so, how many, and to provide their details), whether she intends to send more evidence for her appeal (and if so what); whether she intends to call expert witnesses; whether an interpreter is required (and if so, in what language); any further information "you wish to provide to the Tribunal regarding your appeal" and details of any other asylum appeals by other family members. Where the appellant is represented, there is a section for the representative to give a time estimate for the appeal, indicate whether funding has been secured, and give details of his own and the appellant's current address.

6.27 It is thus clear that the Reply Notice is intended to supply the Tribunal at a PHR with all the information which the appellant would normally be expected to provide at a CMRH. You should review the AIT's Guidance Note on CMRHs and the advice above to see whether there are any other matters which you would want to raise with the Tribunal at this stage in the absence of a hearing. Consider whether to request an oral CMRH. Any application for special measures to be put in place for children or vulnerable adults, for the appointment of a litigation friend, or to vary the grounds of appeal should also be made at this stage if practical. As noted above, however, any preliminary issues or questions such as vulnerability should ideally be considered at a CMRH. You should request a CMRH, giving reasons and attaching a draft of the directions you seek, in these circumstances.

6.28 If you are not yet in a position to provide all of the information requested, it is preferable to submit the form by the deadline even if you cannot answer all the questions and explain the omissions. Otherwise, there is a risk of the Tribunal determining the appeal without a hearing. Just as with CMRHs, if you are not in a position to confirm that you will be ready to proceed on the given date for the substantive hearing, you should indicate this.